BY: VALERIE DYE
During family law disputes neither party may wish to invest the time or finances to have their issues dealt with in Court. In such cases, parties may opt to engage in Collaborative Family Law. Collaborative Family Law is an alternative means of settling family law disputes through collaboration between the parties and their respective lawyers.
In Collaborative Practice, parties are able to work out their grievances in a peaceful manner without going to court. Parties must be able to communicate their desires and concerns openly and work together with their lawyers to ensure that these desires and concerns are met.
Collaborative Practice in family law has certain differences from the adversarial process in court. Under Collaborative Family Law Practice, the parties themselves are involved in finding a resolution to their issues under the guidance and advice of their lawyers. Each party tries to understand the other party’s point of view and commit to working together to arrive at a mutually beneficial solution.
At the outset of the process, parties may agree that litigation is not an option. Parties may also agree with their lawyers that in the event that the collaborative process falls through the lawyers will not represent them in litigation. The benefit of removing litigation as an option is that parties then become free to enter into open and honest discussions with each other without the fear that something can be used against them in court. Parties must, however, endeavour to act honestly and openly and to provide full disclosure of financial records and of all other documents and information that are necessary for the negotiations.
In order to begin the collaborative process, parties must sign a participation agreement which outlines the parameters of engagement. This agreement will outline how the parties will relate to each other and may stipulate that parties will be respectful, honest and open with each other and make full and frank disclosure in order to have constructive discussions. The agreement may also stipulate that parties will strive to act in the best interest of the children if any. The agreement will outline when and how the collaboration will come to an end.
At the end of the collaborative exercise, the parties would sign a separation agreement which outlines all the issues settled during the collaboration process. It must be stated that although this process takes place outside of court the separation agreement that results from the collaborative process is still legally enforceable and parties need to abide by the terms of such agreement.
Although there is value in engaging in collaboration to settle family law issues, it should be noted that this process may not be suitable for everyone especially where there exists a substantial degree of rancor in the relationship. For collaborative practice to work parties must be willing to set aside bitterness and animosity in order to arrive at solutions. In the end, they will save time and money and will be spared the result of having a permanently bruised relationship that often results from litigation.